Potential SCOTUS Nominee, on Harvard Board of Overseers, Could Face Conflict of Interest Questions in Affirmative Action Case

When Supreme Court Justice Stephen G. Breyer announced his retirement last week, Ketanji Brown Jackson ’92 immediately rose to the top of many court watchers’ short lists as a potential replacement.

A judge on the D.C. Circuit Court of Appeals, Jackson is a graduate of Harvard College and Harvard Law School. Since 2016, she has also served on the Harvard Board of Overseers — the University’s second-highest governing body.

Breyer is set to step down as the court prepares to hear a slew of high-stakes cases — including a lawsuit against Harvard seeking to strike down affirmative action in American higher education. The court agreed last Monday to take up a pair of challenges to race-conscious admissions policies at Harvard College and the University of North Carolina.

Judge Ketanji Brown Jackson '92, photographed at Harvard's Loeb House in 2020. By Rose Lincoln / Harvard Staff Photographer via Wikimedia Commons

If nominated, Jackson could face questions over a potential conflict of interest in the case.

Jackson, who was elected by Harvard alumni to a six-year term on the Board, is set to leave the body this year. The 31-member board provides input about the direction of the school and probes the quality of the University’s programs and initiatives.

Experts are divided on whether her position on the Board would warrant a recusal if she were confirmed to the bench.

Indiana University law professor Charles G. Geyh, an expert on judicial conduct and ethics, said a recusal should hinge on whether she was involved in implementing race-conscious admissions policies during her time in University governance.

“In her capacity as a member of the Harvard Board of Overseers, if she was responsible for creating, implementing, or enforcing the policy that she is now being asked to review, I would probably argue that she should step aside in that situation,” Geyh said.

The Board of Overseers, one of two governing boards at Harvard, does not provide direct input on the school's admissions policies. There was no mention of the Board in a 130-page opinion issued by a federal judge in 2019 that detailed Harvard College's admissions process. The 13-member Harvard Corporation, the University's highest governing body, plays a larger role in overseeing the school's operations.

Harvard Law School professor Noah R. Feldman ’92 said “there would be a strong argument that she would not need to recuse” if confirmed to the bench.

“On the Board of Overseers, neither she nor the other overseers would have had definitive say over the admissions process at the University,” he said.

But recusals often hinge on public perception, experts say.

“There’s the question of perception — public perception,” Feldman said. “For that reason, one could imagine her thinking seriously about whether she might want to recuse, so as to avoid any such perception, however mistaken that perception might be.”

Paul Bender ’54, an Arizona State University law professor, said Jackson’s time in Harvard governance could be reason enough for her to recuse herself from the case if she is nominated to the bench.

“I would imagine this Board of Overseers has some overseeing responsibility of the College and that would be enough for me to think that she should recuse herself,” he said.

President Joe Biden promised last week to replace Breyer by nominating the first Black woman to the Supreme Court. National media speculation has swirled around Jackson as a top contender, along with Leondra R. Kruger ’97 and J. Michelle Childs. If approved by the U.S. Senate, the nomination would not change the overall ideological bent of the court, which currently has a six-justice conservative majority.

The United States Code says members of the federal judiciary must disqualify themselves if their “impartiality might reasonably be questioned.” In the court's 2020 term, just one justice recused themself from a case after it was taken up, according to the watchdog group Fix the Court. Since 2015, justices have recused themself from a case at the merits stage just 22 times.

Even if Jackson played no role in overseeing Harvard’s admissions policies, “it is just the kind of thing that looks terrible,” Bender said.

Sanford V. Levinson, a law professor at the University of Texas at Austin, said it would be “very dicey” if Jackson didn’t recuse herself.

“Judge Jackson is on the board even as we speak, and so it would seem to me that she would have some explaining to do if she didn’t recuse herself,” he said.

Harvard Law School Professor Richard H. Fallon Jr. wrote in an email he thinks Jackson would recuse herself in the case if confirmed.

“If Judge Ketanji Brown Jackson were a member of the Supreme Court, I think she very likely would have to recuse herself from the Harvard affirmative action case,” he wrote.

However, even if Jackson recused herself from the Harvard suit, Feldman said there is a distinct possibility she could retain her vote for the UNC suit — which he called constitutionally “more important” because UNC, as a public university, is a state actor.

Jackson did not respond to requests for comment.

At least one other sitting justice may also face calls to recuse themself from the SFFA case: Justice Clarence Thomas’ wife sits on the board of advisors of a conservative advocacy group that filed an amicus brief backing SFFA. Experts also noted that Justice Elena Kagan served as dean of Harvard Law School from 2003 to 2009 — but the SFFA suit specifically targets Harvard College's admissions process.

A single recusal would be unlikely to impact the outcome of a case given the court’s current six-justice conservative majority.

“Harvard cannot win unless it can somehow get the votes of two of those six,” Fallon wrote.

—Staff writer Cara J. Chang can be reached at cara.chang@thecrimson.com. Follow her on Twitter @CaraChang20.

—Staff writer Isabella B. Cho can be reached at isabella.cho@thecrimson.com. Follow her on Twitter @izbcho.